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Billerica celltower fight may lean on 1951 land-use law

By Evan Lips, elips@lowellsun.com

Updated:
01/31/2013 06:59:01 AM EST

BILLERICA -- The Dracut attorney leading a local family's fight against the town's plan to site a celltower at a nearby soccer field is relying on a decades-old public land-use law, one which the town recently explored when a local group asked for permission to use a slice of park land as a composting center.

In her latest Land Court filing, Julie McNeill of All Land Law pointed out that Town Counsel Pat Costello "understands the implications of Article 97" -- the law requiring a vote from state lawmakers whenever a change in use is proposed for designated park or recreation land -- when he advised selectmen earlier this month to hold off on giving the Composting Study Committee the go-ahead to build a compost area at Vietnam Veterans Park.

The land being eyed as a potential site for a new celltower happens to be Akeson Field, a 4-acre parcel in Pinehurst along the Shawsheen River.

Akeson Field, which has served as a town soccer field, sits about 300 feet away from Chris and Carol Curley's house on Shanpauly Drive.

McNeil's motion in support of the town's request for summary judgment, filed Monday, states Costello "correctly concludes the town must comply with Article 97 in order to change the use on part of the (Vietnam Veterans Park) property for a mini-compost operation."

But Costello responded Wednesday by saying that the two situations are different and added that the Composting Study Committee might not have to adhere to Article 97 since "multiple pieces" of the expansive Vietnam Veterans Park are not restricted to specific use.

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Costello said the town is now exploring whether those pieces can be quickly and legally used for a compost site.

The intended use for Akeson Field, according to Costello, is a little more vague. It stems from a Nov. 24, 1951, decision in which a Special Town Meeting voted unanimously to purchase the land from John A. Akeson for $1 "for playground purposes." Costello said there are no distinctions in any of McNeill's filings regarding "the statutory distinctions between parks and playgrounds."

"The soccer fields will remain exactly where they are," he said, adding that he's "looked far and wide" for appellate court-case law that shows playground land falling under Article 97, of which "there is none."

"The truth is that Akeson Field is a gray area," Costello added. "Article 97 is focused on the preservation of environmental open spaces and playgrounds are an entirely different animal.

"Playgrounds by their very nature are not intended to remain in a natural state," said Costello.

The debate over the tower began in January 2011, when the Planning Board denied Independent Tower Holding a permit to build, citing environmental and property-value concerns. Independent Towers later won an appeal in United States District Court. Roughly two months before the Planning Board's denial, Town Manager John Curran entered Billerica into a lease with Independent Towers.

Curran's agreement with Independent Towers followed a vote at Town Meeting to single-out three town-owned parcels where proposals for towers could be considered. Akeson Field happened to be one of those sites.

The significance of the case has not been lost on Costello. He said he's heard from "many other town counsels" interested in the outcome. He noted that the city of Boston is involved in a legal battle over the use of the North End's Long Wharf, where a local group is fighting the Boston Redevelopment Authority's attempts to lease a space to a private operator looking to build a restaurant.

The group, known as the North End Ten, is calling for Article 97 to be factored into any decision.

"The key principal to our argument (in Billerica) is that there's a clear difference in nature between park land and a playground," said Costello.

A summary-judgment hearing, used to dispose a case without having to going to trial, is slated for Feb. 26.

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